Batman plants a tracker on your car as you make your getaway; Superman uses his x-ray vision to find stolen goods in your house; and Professor Xavier telepathically extracts your confession; if you’re a criminal Superheros are constantly invading your privacy in the name of “justice.” What’s worse is that some of the citizens who have their privacy invaded aren’t criminals they’re just caught in the crossfire. Assuming you could serve a subpoena on the Hall of Justice or the Xavier School (and actually enforce a summons) what would your remedy be for these intrusions? If you weren’t able to go after the heroes themselves would there be any legal redress in your impending court case or could you even have a case against the government?

Your course of action in these matters depends on the nature of the crime-fighter as either a government actor or a vigilante. If your captor was a government actor the invasion of your privacy may lead to the exclusion of evidence from your criminal case; if a vigilante was involved your next step is a private tort action against the hero.
This post deals with privacy issues concerning government actors and it begins in a phone booth, a location not unfamiliar to comic fans. In 1967 the U.S. Supreme Court ruled on the case Katz v. U.S.1 and the 4th Amendment’s modern connection to privacy was born. The 4th Amendment provides for the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, but before Katz that didn’t have a lot to do with personal privacy. In fact, the word “privacy” doesn’t even appear in the U.S. Constitution.

What was this case all about and why are we in a phone booth? The F.B.I. used an electronic listening and recording device planted on the outside of a phone booth to record calls being made by Katz. The Court held that this was an unreasonable intrusion and established the notion of a “reasonable expectation of privacy,” (“REP”), as the measuring stick for invasion of privacy jurisprudence. (Prior to Katz privacy was thought to attach to a place rather than an indvidual and their subjective expectation.) Generally, there is no reasonable expectation in any activity done in plain view or in information freely given to a third party. The interpretation of those exceptions has been broad and it must be evident that someone is taking steps to protect their privacy. There is no REP in what a plane flying over your house can see or what you tell someone in a bar, even if unknown to you that person is wearing a wire for the “Feds.” Even with a government actor the 4th Amendment isn’t implicated when a crime-fighter disguises himself as one of your cohorts to get you to divulge sensitive information.

So when considering the popular image of Superman changing in a phone booth, Clark Kent would have more privacy in a phone call to Perry White than in changing into his Superman costume.

Trackers, tracers, and bugs

Based on this reasoning a superhero like Batman using a “bat-tracker” to follow your movements in public or a mutant using Cerebro 2 to locate your whereabouts would not be an invasion of privacy so long as someone following you around would have access to the same information (the analysis changes a little if those devices give the user access to information about your location once you’re inside your house or out of sight – discussed below). There may be an expectation that your everyday activities are private but that expectation is not reasonable.

X-ray vision, super hearing, and clairvoyance

When a government actor uses technology not readily available to the public to gain information an individual has gone to reasonable efforts to conceal an unreasonable search has taken place. This rule developed from a case in which the authorities used a heat sensor to detect unusual concentrations of heat within a suspect’s house to determine that it was likely he was growing marijuana.3 Even though nothing from the device penetrated the actual walls of the house (heat was detected coming out the house) the Court reasoned that the machine gave the officers access to information from the interior they would not otherwise have been privy to. There was a reasonable expectation on the part of the suspect that the activities within his home would remain private. Had the heat sensing equipment been more widely available a person’s expectation that they would not be subjected to its use would be less reasonable.

This case can be extrapolated to deal with the privacy issues arising from superhero powers and technology. Superheroes wouldn’t be very special if their abilities or gadgets were readily available therefore their use constitutes a search that a person (even a supervillian) has a reasonable expectation they will be protected against.

The Exclusionary Rule

Generally an invasion of privacy takes place once information has been collected but the remedy depends on the use of that information. When dealing with government actors unconstitutionally collected information will most likely be used as evidence in a criminal proceeding. With some exceptions that information, and evidence derived from its collection, will be excluded from use in the trial. One notable exception is if the Court finds that the information or evidence would have been discovered even without the use of unconstitutional means (the so-called “inevitable discovery doctrine”). An interesting exception that has since been overruled but that would have applied during the “golden age” of comics 4 is the “silver platter doctrine.” Until 1960 5 Federal authorities were able to direct a subordinate agency to violate constitutional protections and turn evidence over allowing the Federal authority to present the evidence in court without restriction…anything but a golden age for civil liberties.

IN THE NEXT EXCITING INSTALLMENT
Next time we’ll explore the remedies for invasion of privacy committed by vigilantes. Is taking pictures of criminals and crime-scenes really a good way for Peter Parker to make some extra cash?

References

1 – Katz v. United States, 389 U.S. 347 (1967).

2 – Kyllo v. United States, 533 U.S. 27 (2001).

3 – A machine used by telepaths to locate mutants.

4 – The period beginning in the late 1930′s with the introduction of Superman lasting until the late 1940′s.